G. Gregory Willows, Hal B. Wellsch, Donald G. Orr, David J. Brundige, J. Paul Malone, Scott A. Mazinke v. Louis A. Browne,, 2020 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2020 SKPC 29 Date: July 15, 2020 File: 114/19 Location: Regina _____________________________________________________________________________ Between: G. Gregory Willows, Hal B. Wellsch, Donald G. Orr, David J. Brundige, J. Paul Malone, Scott A. Mazinke and Louis A.

Browne, operating a business under the trade name and style of Willows Wellsch Orr and Brundige LLP - and - Clinton David Key Louis Browne For the Plaintiff (Defendant by Counterclaim) Nathan Phillips For the Defendant (Plaintiff by Counterclaim) _____________________________________________________________________________ JUDGMENT DEMONG, J _____________________________________________________________________________ Introduction [ 1 ] The plaintiff is a law firm carrying on business primarily in Regina but also throughout the province of Saskatchewan.

It brings this action to recover the balance of legal fees that it says is owing to it in relation to the provision of legal services that one of its partners, Louis Browne, provided to Mr. Key in the fall of 2017. He had been retained to appeal a criminal conviction and seek judicial interim release pending that appeal. The principle sum ostensibly still owing after two earlier payments of $2.000.00 and $3,000.00 made

shortly after Mr. Browne’s retention equates to $7,015.07. While the plaintiff originally pleaded that it was entitled to interest on that sum at the rate of 18% per annum, the interest component of the claim was abandoned at trial, as the plaintiff recognized that it did not have an agreement with Mr. Key to charge interest. The only interest allowable, therefore, would be statutory prejudgment interest. [ 2 ] Mr. Key has defended this action and counterclaimed. He maintains that the amount that the law firm charged for its legal services was excessive, unfair, and unreasonable.

He argues that the arrangement that he had with the plaintiff was that he would only be charged a fixed fee of $5,000.00. He disagrees that the agreement anticipated an ongoing fee-for-services retainer agreement. He says that because he has paid that amount there are no further monies owing. Mr.

Key has counterclaimed and argues that because he did not obtain the relief he was hoping to receive, and/or because he should have been advised upfront that his application would ultimately be found to be without merit, he derived no value for the services provided, and therefore he should be entitled to recover some or all of the amount that he had paid to the plaintiff, which was $5,000.00.

Summary of Non-Contentious Facts [ 3 ] While the contractual nature of the plaintiff’s retention and the amount of fees and disbursements that were billed are very much in contention, I am of the view that many of the surrounding facts leading up to that retainer and what transpired under that retainer are not. I accept that in 2017, Mr. Key was convicted by Judge P. Reis in

Summary Conviction Court on two criminal counts. The first related to a charge that ‘having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millimeters of blood [he] did have care and control of a motor vehicle contrary to section 253(1) (

b) of the Criminal Cod e ’. The second charge related to an ‘unlawful failure to attend Court on August 5, 2016, at Yorkton, Saskatchewan as required by the said Court contrary to Section 145(2) (

b) of the Criminal Code ’. Following his conviction Mr. Key was sentenced globally to 13 months incarceration: on the care and control charge - 12 months plus 15 days incarceration together with a driving prohibition of three years plus six months and a surcharge of $100.00 and on the second charge - 15 days incarceration to be served concurrently and a surcharge of $100.00. [ 4 ] There is a statutory right of appeal upon conviction but there is a time limit within which that appeal can be brought. Approximately one week prior to the expiration of Mr.

Key’s appeal period and on a referral from a lawyer by the name of Nathan Phillips, Mr. Key contacted and retained Louis Browne, a partner in the plaintiff’s law firm who had, at that time, been practicing law for approximately 17 years. While much of the time spent at this trial dealt with how and to what extent Mr. Browne should have focused his energies pursuant to that retainer, I am satisfied that Mr. Browne had been retained to do four things: (

a) appeal the conviction on the charge of care and control; (

b) appeal the sentence that was imposed in relation to that charge; (

c) apply for judicial interim release pending that appeal; and, (

d) obtain relief from the driving prohibition pending the appeal. [ 5 ] Shortly after having been retained, it became apparent to all parties that the focus of Mr. Browne’s energies would be directed to the judicial interim release application and the driving prohibition pending appeal. Mr. Browne did that which many lawyers which are subject to restrictive timelines do. He obtained cursory instructions and filed a pro forma Notice of Appeal. Pro forma , because he would not have had time to obtain the transcripts of the trial or the sentencing, nor Mr.

Key’s criminal record nor the pre- sentence report prior to the expiry of the appeal period. [ 6 ] To put matters into perspective Mr. Browne was retained at or around the very end of September or very early October of 2017. The appeal had to be filed by October 6. The application for interim release was heard on November 22 and the oral decision of Mr. Justice Layh, was reduced to writing on November 24. In the period between October 6 and the date of hearing Mr. Browne called for and obtained the transcripts of the trial and the sentencing. He obtained Mr. Key’s criminal record and the pre-sentence report.

He amended the pro forma appeal notice to include additional grounds. He called for and received numerous letters of support for Mr. Key and incorporated them into the affidavit that Mr. Key swore in support of the application. He prepared a draft order and filed a brief of law. In answer, the Crown vigorously challenged the application and filed a rather comprehensive brief. [ 7 ] Mr. Justice Layh’s decision was swift and cogent. He declined the application for judicial release. Mr. Key’s application for release was governed by section 679(3) of the Criminal Code . That

section requires that the appellant establish that: (a), the appeal or application for release is not frivolous; (b), Mr. Key would surrender himself into custody in accordance with the terms of any order that the Court may impose; and (c), his detention is not necessary in the public interest. The Crown had accepted that condition (

b) would be of little concern because it did not find Mr. Key to be a flight risk. I infer that they may have concluded this in part, because Mr. Browne had made arrangements to have Mr. Key put up significant collateral to waylay that concern. In short, Mr. Justice Layh ostensibly accepted that this part of the three-step test had been met. [ 8 ] That stated, Mr. Justice Layh found that Mr. Key had failed to establish that the grounds of appeal were ‘not frivolous’. In fact, he concluded that they were.

He went through each ground and determined that some of them lacked merit and others bore no semblance to the issues raised in the lower Court and were simply ‘boilerplate allegations with little substance’. As important or more so, he could not accept that Mr. Key’s release would be without significant risk to the public. He found that Mr. Key’s five previous convictions for alcohol related driving offences; his sixteen convictions for driving while disqualified; and the fact that Mr. Key had six speeding convictions since the laying of this most recent care and control charge was ‘illustrative of [Mr.

Key’s] mystifying disregard for safety on public roads’. He concluded that Mr. Key’s proclivity for speeding combined with his disregard for the rules of impaired driving presented an ‘explosive potential for public risk’, and he had no confidence that Mr. Key’s release, even with strict driving conditions, would likely alter his future conduct. [ 9 ] Immediately after Mr. Justice Layh’s decision, Mr. Key abandoned the remainder of his appeal. The Pleadings and the Steps Taken in this Lawsuit

[10] After having formally demanded payment for certain interim statements of account which the plaintiff had sent, the plaintiffcommenced this lawsuit. It pleaded that the defendant had refused, failed, or neglected to pay these accounts, and that therefore, theywere now due and owing. While the claim does not expressly plead that the amounts sought were a ‘debt’ it appears to have approachedthis lawsuit as if they were. However, the amounts being sought are not, technically speaking, a debt. They do not constitute a specifiedsum which the parties expressly agreed upon as a fixed obligation.

Rather, the claim is in the nature of a request for payment based onthe legal principles of contractual quantum meruit. That is to say, the claim is more properly framed as an assertion that the defendantagreed to pay for disbursements and services provided by the plaintiff; that the plaintiff would fairly and reasonably incur expense, time,and energy; and therefore, if not contested, then ipso facto, the amount sought should be presumed to be fair and reasonable and payableas if it were a debt. [11] Lawyers often bring these types of claims in this Court.

In the vast majority of these cases, the claim proceeds to defaultjudgment, or, if defended, is challenged on grounds other than in respect to the amount that is claimed. It is a timely, cost effective, andefficient method of obtaining judgment. However, some difficulty arises when a defence is filed which places quantum into issue - whichthe defendant has done. Among other things, the defendant has specifically pleaded and relies upon

section 73.1(1) of The LegalProfession Act, 1990, SS 1990-91, c L-10.1 [Act] which reads: 73.1(1) If, in an action pursuant to The Small Claims Act, 2016, respecting a bill of fees and disbursements with respect to servicesperformed by a member, an issue arises respecting the amount of the bill and no application has been made pursuant to

section 67, thejudge, notwithstanding

section 67, has jurisdiction to determine the amount of the bill. [12] The Act governs the practice of law in Saskatchewan and

section 67 of the Act authorizes a client or a member of the lawsociety to assess a lawyer’s bill of fees and disbursements within certain time constraints after the bill has been rendered – usually 30days. The assessment officer is generally the local registrar who, by virtue of their training and experience become proficient in thisassessment exercise. The manner of assessment by a local registrar is far less procedurally complex than the trial process.

Pleadings arenot filed, there is no case management, and while evidence may be tendered by affidavit, witnesses are rarely called upon to give vivavoce evidence or be subjected to cross-examination. The assessment officer hears from each party, reviews the facts and circumstances ofthe lawyer’s retention and that lawyer’s file contents (together with, typically, an affidavit in support) and based on several criteria whichI will explain shortly, determines the fairness and reasonableness of the bill which has been provided.

In the exercise of their discretion,the assessment officer may reduce the amount of the bill if they find it to be excessive. [13] Prior to the coming into force of

section 73.1(1) of the Act in 1996, a rather cumbersome problem had evolved as expressed inWest v Meagher (1994), (SK CA), 123 Sask R 44 at para 6 (Sask CA): If it then turns out that the defence to the claim is related to the amount of the account, an issue has been raised which should properly beresolved by the application of the taxation provisions of The Legal Profession Act, 1990. The proceedings in the small claims court mustthen be adjourned in order that the taxation could be pursued in the Court of Queen’s Bench as is provided by The Legal Professions Act,1990. [14]

Section 73.1(1) resolves that problem in so far as it allows a Judge of this Court to undertake the same type of assessment thatan assessment officer operating under the authority of the Court of Queen’s Bench would otherwise do. [15] It is apparent that by the time this matter came to trial, each of the parties were aware of the assessment function of this Court.I say this because when court was called the plaintiff indicated a preference to have this Court remit the entire matter to the local registrarfor an assessment - ostensibly to save costs and time and energy.

However, I was of the view that I could not do so without the consent ofthe defendant, and clearly the time period to have the matter referred to an assessment officer at the Court of Queen’s Bench had expired.The defendant, having asserted to the court that this trial would not consume the full two days set for hearing this matter refused toconsent - something which he was fully entitled to do. Unfortunately, precious little time was actually taken up in court focusing on thosecriteria that an assessment officer is obliged to consider.

Instead, much of the trial tended to focus on matters which were of little value tome. By example, the defendant steadfastly refused to consent to the introduction of the plaintiff’s file contents, forcing the plaintiff tospend in excess of an hour to prove each of the 35 some odd documents which were entered. The defendant had indicated at an earlier court attendance that he would exercise good faith efforts to join into the preparation of a joint exhibit book and this was not done. Thefact that the entirety of the file was ultimately accepted into evidence without any apparent objection was frustrating.

Much more timewas spent dealing with the defendant’s right to obtain copies of the electronic file of the plaintiff rather than simply being afforded theopportunity to inspect it. More time was taken up with discussions and argument as to whether Mr. Browne was familiar with theinternal workings of the software used by the plaintiff to record his time; whether or not Mr.

Browne was in the habit of personallymailing materials rather than using his secretarial staff; and, whether it would not have been more appropriate to have the plaintiff’scourt runner review and obtain precedent material at the Court of Appeal rather than having Mr. Browne undertake that kind of legalwork by himself. Significant time was spent dealing with the manner in which the file was billed and the ostensible lack of detail in thestatement of accounts rendered. Of the almost four hours that the defendant spent cross-examining Mr.

Browne, very little of it dealtwith delving into the criteria which the Court will have to use in assessing a fair and reasonable value of the work that was done.

Thatsaid, I would hasten to add that the plaintiff spent precious little time in explaining and then justifying the amount of time that was putinto the file – and of course, on an assessment, it is the plaintiff which bears the burden of proving that its bills are fair and reasonable.[See specifically: Zipchen v Bainbridge, 2008 SKCA 87 para 55, 311 Sask R 90]. [16] Finally, much of the time taken up at trial dealt with whether the arrangement between the parties was on a fixed-fee basis ora fee-for-service basis., and whether or not the plaintiff could prove that, having sent its accounts, they had actually been reviewed byMr.

Key. The Issues

[ 17 ] I find that the following issues must be resolved: 1. Was the arrangement between the parties a fixed-fee agreement or a fee-for-service agreement? 2. If it was a fixed-fee agreement for the sum of $5,000.00 and no more, is the plaintiff automatically entitled to retain the $5,000.00 already paid, or can this Court nevertheless assess the reasonableness of that fee and reduce it? 3.

If the agreement was a fee-for-service agreement, is the amount that has been billed to the defendant fair and reasonable, and if not, what is a fair and reasonable value for the disbursements incurred and time spent on the file? 4. Which of the parties should be entitled to their costs and in what amount? The Evidence, Findings of Fact and Analysis [ 18 ] I hasten to point out that the plaintiff and the defendant did not enter into a written retainer agreement.

That is unfortunate as it would have resolved much of this dispute as it relates to whether the agreement was for a fixed-fee or a fee-for-services rendered.

There is some temptation to follow the sage advice of the Court of Appeal on the onus of proof expressed in Dickie, Re, (1916), 23 BCR 538 at pages 541-542 (BC CA) [ Dickie, Re ] in which the Court held: There runs through the cases, that which seems right and proper in the administration of justice, that if a solicitor will make an agreement with a client, then he must be able to shew what the agreement is, and if it is not in writing, then it seems to be that the client’s statement must be accepted.

If he makes an agreement, then let him make it in writing as a prudent solicitor with a client, disclosing all the facts and circumstances. However, I am well aware that a great many lawyers enter into oral fee agreements, particularly in the criminal law area, and I do not see Dickie, Re as the current state of the law. Rather, and as noted in Meredith & Co. v Poloway (1989), 40 BCLR (2d) 281 at para 287 (BC CA) , what is necessary is to examine the circumstances of each case in order to ascertain the nature of the arrangement with the solicitor.

This, of course, in the context of the burden of proof, which rests with the plaintiff. [ 19 ] Mr. Key maintains that the agreement was for a fixed fee of $5,000.00, His partner, Delvina Whitehawk confirms this although her evidence is based solely on what Mr. Key told her, and it is simply hearsay. The problem with her testimony is that it does not accord to an e-mail chain entered into evidence as Exhibit P-8. In that e-mail, Ms. Whitehawk asserts that she was advised by Mr. Key that in exchange for the sum of $3,000.00 Mr. Browne had promised to ‘get him (Mr. Key) out’.

It makes no reference at all to a fixed fee of $5,000.00. In any event Mr. Browne was quick to point out that he did not tell Mr. Key that he would get him out of jail in exchange for the sum of $3,000.00. He indicated rather, that his arrangement was that the $3,000.00 was a retainer to allow him to bring the application for his release pending his appeal; that he bills out at the rate of $275.00 per hour; and that his hourly rate is subject to go up in the following year. He then indicated that it will likely cost more than $3,000.00 but the retainer is ‘like a down payment’.

He also advised her that he cannot guarantee results; that there are no guarantees or sure things, and that because of Clinton’s criminal record, ‘we face an uphill battle’. [ 20 ] While this e-mail, having been sent to Ms. Whitethawk, is not proof that Mr. Browne advised Mr. Key of his billing method, it lends credence to Mr. Browne’s evidence that he did. First, it reinforces what all lawyers know: there is no guaranteed result when practicing criminal law, and Mr. Browne indicated at trial that he would never provide such a guarantee. Second, having been authorized by Mr. Key to speak to Ms.

Whitehawk, the e-mail reiterates a fee for service arrangement. Under the circumstances I think that Mr. Browne would, assume that because he had been authorized to speak to Ms. Whitehawk by Mr. Key, his comments on the fee arrangement would be passed on to Mr. Key by his wife and would therefore have crystalized what may have been uncertainty as to the nature of the agreement. Third, his comments are completely consistent with the practice that he followed in rendering subsequent accounts. Fourth, he was not at any time asked to clarify this, nor was his assertion challenged at any time thereafter.

I take note of the fact that when Ms. Whitehawk responded to those comments, in those e-mails, she simply stated “Hi Louis, Ok. Thank You”. Fifth, at trial is was made abundantly clear by each of Mr. Key and Ms. Whitehawk that on all things financial in their marriage she is the one that pays the bills and is in charge of their finances in order to keep Mr. Key an a steady financial path - because, as Mr. Key puts it - ‘if I earn money, I just spend it’. I find it highly unusual that Ms. Whitehawk would not have shared this information with Mr.

Key if it was in fact so very different than what they thought the arrangement was. All of these considerations tend to reinforce the plaintiff’s position that Mr. Browne had in fact entered into a fee-for-service arrangement with Mr. Key. [ 21 ] In my view, the plaintiff’s evidence on this issue is more persuasive than that of the defendant and his witness. While the actual discussions had and taken between the parties in relation to fees could have, and in my view should have, been more comprehensive, I conclude that when Mr.

Key asserts that he was advised that the agreement was for a fixed fee of $5,000.00, I believe he is mistaken. On this matter, I take special note of Mr. Key’s evidence on cross-examination and the number of things that he could not recall generally. He was a rather poor historian. When asked if he could recall Mr. Browne asking for a further $3,000.00 interim payment, (which would lend credence to the fee-for-service arrangement), Mr. Key’s answer was that he ‘could not recall’ because at that time ‘he had a lot on his mind with other things”. I take special note of the fact that Ms.

Whitehawk made it clear to the Court that Mr. Key’s diabetes (which arose prior to his incarceration and which caused him to enter into hospital care for a period of time), had made him ‘very forgetful’. [ 22 ] For all of these reasons issue number one is answered in the negative.

I do not believe that the parties entered into a fixed-fee agreement for the sum of $5,000.00. [ 23 ] If I am subsequently found to be wrong in this point, then, and in any event, I am satisfied that a Court, like an assessment officer, is still free to assess the reasonableness of the quantum negotiated in respect to a fixed-fee agreement and, if necessary, reduce the amount of the bill. In Maurice Law, Barristers and Solicitors v Sakimay First Nation, 2014 SKQB 310 , 458 Sask R 54 Madame Justice Krogan cited, with approval, Morrison v Rod Pantony Professional Corp., 2008 ABCA 145 , 429 AR 259:

[25] Retainer agreements are obviously in a special category. The client is negotiating an agreement with a person (the solicitor) that the client would usually look to for advice on such matters. In negotiating the agreement the parties are adverse in interest, contrary to the normal state of affairs where the solicitor is bound to represent the client’s interest. There is also an imbalance of information and knowledge, because the solicitor will be more familiar with the terms and operations of the retainer agreement than the client.

It is undoubtedly for those reasons that solicitor-client contracts are reviewed by the court, whereas the court will not conduct that sort of analysis of ordinary contracts. [ 24 ] Simply put, if the amount of the bill is challenged, it is open to this Court to consider the reasonableness of the bill whether the arrangement is fixed-fee or fee-for-service. I conclude therefore that issue 2 is answered in the affirmative. [ 25 ] In my respectful view, when a Judge is called upon to determine the amount of a lawyer’s bill, and

section 73.1(1) of the Act is invoked, the same considerations apply as if an assessment was being undertaken pursuant to

section 67 of the Act .

In that context I take note of our Court of Appeal’s comments in Phillips Legal Professional Corporation v Vo, 2017 SKCA 58 at para 146 [ Vo ]: [146] The overarching responsibility of an assessment officer to determine what is fair and reasonable must be applied on an account as a whole and not on an item-by-item basis. [ 26 ] Simply put, in the absence of a very specific and informed agreement between the parties, a lawyer’s fee does not become owing simply because the lawyer has meticulously recorded their time and their actual disbursements and then added it up and forwarded it on to their client.

There are a number of factors which must be considered and which should be contemplated by a lawyer in consideration of the amount of the bill that they render to their client. [ 27 ] Vo , at para 49 , has confirmed that what is fair and reasonable is dependent on such factors as: (

a) the time and effort required and spent; (

b) the difficulty of the matter and the importance of the matter to the client; (

c) whether special skill or service has been required and provided; (

d) the results obtained; (

e) fees authorized by statute or regulation; (

f) special circumstances, such as the postponement of payment, uncertainty of reward, or urgency; (

g) the likelihood, if made known to the client, that acceptance of the retainer will result in the lawyer’s inability to accept other employment; (

h) any relevant agreement between the lawyer and the client; (

i) the experience and ability of the lawyer; (

j) any estimate or range of fees given by the lawyer; and (

k) the client’s prior consent to the fee.

[28] I do not see these considerations as necessarily exclusive.

In Sandstrom & Scott and United Chemicals Ltd., Re (1989), (SK CA), 74 Sask R 59 at para 10 [Sask CA], that Court included two additional considerations – (l), the charges of otherlawyers of the same standing at the bar for similar services, and (m), the ability of the client to pay. [29] With these considerations in mind I intend to review each of the statements of account that were prepared by the plaintiff – notfor the purposes of conducting a narrow line-by-line analysis of each entry provided - but rather to use as a road map for the steps takenby the plaintiff in providing the services that were rendered. [30] I intend to review the disbursements first.

The November 6, 2017 statement of account reflects disbursements of $486.99,constituting the price paid for transcription of the trial and sentencing. I consider this to be a reasonable disbursement as it is the actualcost incurred for those services and I think that any reasonably competent lawyer would call for the transcripts (for eventual review)when undertaking an appeal from a

summary conviction matter. I do not take issue with a $40.00 administration fee to set up the file –many lawyers incur time and expense in starting a file. I do have concerns in respect of printing and colour copies which equate to thesum of $20.45. There was no evidence tendered at trial which explains what this is for or how it was calculated. I do not take issue with afax charge of $12.50. The evidence shows that the plaintiff utilized the facsimile process to call for various items from third parties. [31] The November 24, 2017 statement of account reflects taxable disbursements for Dr.

Ettiene Crouse in the sum of $150.00 as afee for a medical report. This medical report was called for to identify the nature and the extent of Mr. Key’s medical condition at thetime of the trial in so far as it speaks to his diagnosis of diabetes and the potential debilitating effects that Mr. Key’s medical conditionmay have impacted on his ability to represent himself at trial. This was one of the grounds for appeal and while not successful, it was inmy view necessary for the plaintiff to review that in consideration of arguably advancing this new ground albeit dubiously successfulground of appeal.

I find it to be reasonable. The remainder of the disbursements relate to printing, courier costs, photocopy charges,postage, and facsimile charges totaling $148.23. Once again, no evidence was led at trial explaining how these charges were quantified.I am not prepared to allow these disbursements in their entirety for that reason. That stated, there is no question that these types ofdisbursements would have been incurred in the course of handling the file.

Absent an affidavit of disbursements or viva voce evidence onthose general office charges I am prepared to exercise my discretion and assess a nominal global charge of $50.00 to reflect all of thesemiscellaneous office disbursements during the currency of the retainer. [32] The final statement of account, rendered February 13, 2018, was in respect of a request by Mr. Key to arrange for a supportletter to be forwarded to him by facsimile. He was charged $4.00 for printing costs. There is no evidence before me that any printingcosts were incurred other than the provision of the account.

This amount is included in my global assessment of miscellaneous officedisbursements. [33] In total I find that the plaintiff is entitled to charge disbursements in the sum of $739.49. [34] I turn next to the fees. The November 6, 2017 statement of account identified fees in the sum of $4,156.70. I accept that Mr.Browne recorded and put 14.85 hours of work into the file at an hourly rate of $275.00. PST and GST were added in the sum of $452.87.The second statement of account identified fees in the sum of $6,196.98 again at an hourly rate of $275.00 per hour for a total of 21.45hours.

PST and GST equated to the further sum of $656.28. Again, I accept that Mr. Browne properly recorded his hours and I accept hisevidence that this is the amount of time he incurred on the file. [35] The last statement of account records a $55.00 fee for responding to Mr. Key’s request for copies of the letters of support thathad been prepared on his behalf. This equates to .2 hours. I accept that this is properly recorded and that this amount of time was taken toreview the request and respond to Mr. Key. [36] In total Mr.

Browne incurred 36.5 hours on this file at the rate of $275.00 per hour for a total of $10,037.50. In final argument,Mr. Key suggests that this Court has no authority, in the absence of evidence at trial on what a typical lawyer with 17 years of experiencemight charge as an hourly rate, to consider whether a rate of $275.00 per hour is reasonable. He appears to argue that in the absence ofthat similar fact evidence no rate can be ascertained. I simply disagree.

Like assessment officers, who by years of experience exercisetheir discretion as to what a fair hourly rate might be for a lawyer with a stated number of years of call and experience this Court maycome to the same conclusions. Members of this Court typically spend a great many years practicing law before they are called to theBench. They are aware, generally, of lawyer’s rates and that those hourly rates typically increase in proportion to the number of years ofcall to the bar and the extent of a lawyer’s expertise. I do not take issue with Mr.

Browne’s hourly rate, and a review of the evidenceindicates that no issue was taken in regard to the reasonableness of that rate at trial. In my view it is a fair hourly rate for a lawyer whopractices in a large urban center; who had 17 years call to the bar at the time of his retention; and who professed, and who was notchallenged at trial, that much of his practice focuses on criminal law. [37] I do, however, take issue with the number of hours that were charged.

In my view, and for the reasons which follow, Iconclude that the number of hours put onto the file to be excessive, or perhaps to put it in proper context, regardless of the hours put in,the total amount charged for the services rendered do not, when all of the factors mentioned above are considered, constitute a fee that isfair and reasonable. [38] I start by noting that some of the assessment factors identified earlier have no meaningful application to my analysis. Factor(e) - fees authorized by statue or regulation - has no application. The first two considerations of factor (

f) do not apply. I see no specialcircumstances such as postponement of payment or uncertainty of reward coming into play. Factor (

g) does not apply. There is noevidence before me that the acceptance of this retainer would have resulted in the plaintiff being unable to accept other employment. [39] With due respect, I do not find that the legal services provided were particularly complex in a legal sense, nor particularlydifficult from an experienced criminal lawyer’s perspective. They were in the nature of a bail hearing involving the three primaryconsiderations set forth under

section 679 of the Criminal Code – frivolity of the appeal, self-surrender, and public risk. As such,consideration of the first part of factor (b) - difficulty of the matter- militates in favor of a lower fee. Similarly, there is nothing in theservices provided that requires any special skill as identified in factor (c). This is a legal process that is regularly utilized by the barinvolving a

summary review of the transcripts, a narrow review of the three legal issues under consideration, and a simple drafting task –

all of which were to be undertaken in a forum that a criminal lawyer would be familiar with and following procedural rules which are easily identifiable. This factor militates in favour of a lesser fee. In saying this I note that Mr. Browne had professed a familiarity with the practice of criminal law over the course of his then 17 years of practice. When asked how many

summary conviction appeals he had run before being retained on this matter, he indicated that it would have been between five and fifteen, but perhaps on the lower side of that range. As such, this retainer would not have been novel. His experience and ability should have made the work easier. The existence of forms set out in the Court of Queen’s Bench For Saskatchewan

Summary Conviction Appeal Rules which are designed and intended to guide that practice, should have made that work even easier. [ 40 ] Mr. Key was in jail at the time. Because Mr. Browne was called upon to look to Ms. Whitehawk for assistance on the file, this meant that Mr. Browne did not have immediate and free access to Mr. Key. I accept that not having a client at one’s beck and call to attend at one’s office to give instructions and generally discuss details at the lawyer’s leisure would anticipate that more time and effort would have to be put in. However, the fact that Ms.

Whitehawk undertook the responsibility of both seeking and obtaining letters of support to be appended to Mr. Key’s affidavit in support of this hearing offsets that consideration to a large degree. In addition, I take note of the fact that Mr. Browne did not attend personally at the hearing and instead participated by telephone. Therefore factor (a) – the time and effort required and spent does not militate either for or against a lower fee. Nor do I not find that factor (j) – any estimate of fees given by the lawyer - to be particularly relevant as none was given.

That said, there was no prior consent to the actual fee charged, and as such the client had no idea what his costs would ultimately be. Factor (

k) militates against a more expansive fee. To put it another way, Mr. Browne would not have received a carte blanche authority to spend a pre-authorized amount of money in this endeavor. [ 41 ] Unfortunately, a factor which this Court would have found to be very helpful was not considered at the trial by either party. Factor (l), the charges of other solicitors of the same standing at the bar for similar services would have been entirely useful and compelling evidence to this Court.

As no evidence was tendered on this factor, I am not prepared to give consideration to it. [ 42 ] There are two other factors which, in my view also militate in favour of reduced fees. The law compels this Court to consider the ability of the client to pay. I understand this to mean that a lawyer should take into consideration the financial means of a client when determining the amount of his bill. The evidence before me on this point was that because of Mr. Key’s criminal conviction he had lost his job and lost his paid position as a band councillor. While Mr.

Key’s financial situation could have been explored in a more fulsome manner at trial it is clear to me that he was the bread winner of the family and that the family desperately needed him to get out of jail to provide for them. I find, on the evidence that, during the course of Mr. Browne’s retainer, he would have been aware of Mr. Key’s apparent impecuniosity. While the evidence before this Court and as set forth in the appeal affidavit of Mr.

Key was that if he was released, then he had an opportunity to become a party to an extraordinarily large contract having a value of two hundred and fifty million dollars. Mr. Browne has conceded and I find, made known to Mr. Key, that both the appeal and the interim release were ‘uphill battles’. Impecuniosity militates in favour of a reduced fee. [ 43 ] Factor (

d) speaks to the results obtained. Contrary to the counterclaim as drafted, and its aspirations, a lawyer’s lack of success does not mean that they should not be paid for their services. Were that the case, I suspect that the number of litigators in this province would diminish considerably. In final argument, Mr. Key suggests that he would never have undertaken the appeal if in fact there was little prospect of success. Hindsight is a wonderful thing, but I cannot, on the evidence presented at trial, come to this conclusion. It was made abundantly clear to me that Mr.

Key and his wife desperately sought his interim release. Many people are willing to take a risk, even a very large risk, if the reward is truly significant. In the instant circumstances, the success on appeal was a long shot. Arguably, a very long shot. This militates in favour of a reduced fee but it is offset to some extent by factor (b), the importance of the matter to the client. I say this because Mr. Key and his family were, on the evidence presented at trial, extremely keen on having Mr. Key get out of jail, even if only on an interim basis. They were in financial straits; Ms.

Whitehawk and her children were pleading for his release; and, although a longshot, and if Mr. Key’s sworn evidence in his appeal affidavit were true, then he stood to participate in the contract I have just referred to. Therefore, the upside of his release was nothing less than an opportunity for a windfall of work that would have been absolutely life changing to even the wealthiest among us. [ 44 ] I am giving consideration to these various factors in the manner in which a Court should. Nothing in the law suggests that any of them should be attributed a special hierarchy among the others.

They are all factors to be placed into the mix, and in consideration of each of them and their particular strengths and weaknesses on the matter before the Court, they are simply an amalgam of factors to be considered in the exercise of a judge’s discretion. [ 45 ] I now turn to the accounts. There is a reason why our appellate courts have criticized a line by line analysis of any lawyer’s account in order to assess the reasonableness of the amount charged. Different lawyers approach tasks in a different way.

What is important is not necessarily how many specific tasks that are reflected in that account, but rather the reasonableness of the amount that is being sought for those services. [ 46 ] There are three, for lack of a better term, general tasks, that appear at a glance to be excessive. They relate to conversations and communications that Mr. Browne and Mr. Key and his wife had; researching and preparing the form of appeal notice both pro forma and as amended; and research on the substantive law in relation to this matter.

While the time entered does not identify precisely the time spent for this, I can identify approximately 29 hours, of the 36.5 hours actually charged, which are attributable to these tasks. While a task is often seen clearer in hindsight, when I consider all of the factors referred to earlier, I am satisfied that only three or four hours need have been taken in order to obtain the necessary instructions and information to set the parameters of the affidavit which would have to be filed, and to consider this information in the context of the substantive law to be applied.

This of course, in addition to all of the other information that had been obtained and considered and charged for. I think that only two hours would then be needed to actually draft that affidavit. I would think that with Mr. Browne’s experience and years of call, that a lawyer would only require an hour to draft what was a most pro forma original Appeal Notice and Draft Order and perhaps an additional hour to give consideration to any amendment and to make and file that amendment. I would think that, at most, a lawyer of Mr.

Browne’s past practice and experience would spend no more than four hours to research the law and to prepare that brief of law, focused as it is on three relatively straightforward legal issues and then file it; and two more hours to review the Crown’s brief and prepare his argument for the application. [ 47 ] I say this for the simple reason that I have stated before: this legal matter was in essence a bail application – arguably a more

complicated bail application - but a bail application nevertheless. This necessitates a reduction of the fee portion of the bill by 15 hours or $4,125.00. [ 48 ] This reduced fee, equal to $6,228.68, would, in my view, be the high water mark for this type of retainer having due regard to: factor (a), the time and effort that should have been spent - in light of factor (b), the difficulty of the matter and the importance of the matter to the client – factor (

c) whether special skill or service has been required – and factor (

i) the experience and ability of the lawyer. It does not give consideration to factor (d), the results obtained - factor (k), the client’s prior consent to the fee - or factor (m), the ability of the client to pay. Ultimately, these factors give reason to reduce the fee further. As counsel for Mr. Key points out, the full extent of the downside risk associated with the application was not made known to Mr. Key. Those risks were significant and Mr. Browne should have been aware of that. With the greatest of respect to Mr.

Browne, if the law demands, on an assessment of fees, that a Court consider these latter three considerations, they should have been in contemplation of Mr. Browne when considering the fee that he would charge. That consideration should simply have been this ‘I have taken on a project that was rife with the risk of a lack of success. I have not received my client’s prior consent to what I will charge, and he is, by all accounts, impecunious or close to it.

I should reduce my account to reflect these matters’. [ 49 ] There is no magic formula that a Court can use in exercising its discretion on these latter factors, but I think that a further reduction of 25% off the highwater mark of what could have been charged is reasonable. In conclusion I am of the view that the fee should be reduced to $4,671.51. Because fees are subject to tax, I would increase that amount by 11 per cent , which translates to $5,185.37. I would add to that amount the plaintiff’s disbursements which equated to $739.41, for a net total of $5,924.86.

Since $5,000.00 of that amount has already been paid, the plaintiff is entitled to judgment in the sum of $924.86. [ 50 ] The plaintiff is entitled to prejudgment interest on that sum commencing November 28, 2017 which amounts to $31.91. [ 51 ] The only remaining issue is that of costs.

Section 36 of The Small Claims Act 2016, SS 2016, c S-50.12 [ The Small Claims Act 2016 ] authorizes a Judge of this Court to award costs both in respect to interim applications and at the conclusion of trial. When Mr. Key was noted in default of defence he brought application seeking to set aside that judgment and he was successful. His argument was that he did not receive actual notice of the claim. I reserved on the issue of costs at that time. Exercising my discretion, I choose to make no award of costs in relation to that matter. I say this for two reasons.

First, the materials filed indicated that the claim was sent by registered mail and identified as received by Clinton Key. While it may well be that someone else picked up his mail for him and that he did not receive actual notice, the evidence throughout the trial of this action appeared to exhibit a pattern of Mr. Key expecting others to pick up mail for him or ignoring it altogether. Therefore, while he was successful on the interim application, I set aside the default judgment with some concerns as to whether or not he had in fact been made privy to that claim, but with a fulsome desire to ensure that Mr.

Key had the opportunity to defend himself in this action. [ 52 ] Generally speaking, costs should follow the cause excepting unusual circumstances, and, of course, section 36(3) of The Small Claims Act 2016 invites the Court to consider other factors such as: access to justice; fairness to the parties; any offers to settle; the conduct of the parties; or any other factor that the judge considers appropriate. The regulations made pursuant to The Small Claims Act 2016 allows the Court to make an award of up to, but not beyond, 10% of the amount of the claim.

Typically, I have paid special attention to offers to settle for an obvious reason. If one of the parties at trial does better than what they had offered to pay, then there was no point in proceeding to trial. The recipient of the offer should have accepted it rather than incurring the time and expense of trial. [ 53 ] At the conclusion of this trial, the parties filed sealed offers that had been made between the parties - to be opened by me following my decision, but before considering costs - to see if they would have affected my discretion as to costs.

The plaintiffs offer has no bearing on my decision as it is in excess of what it ultimately was awarded. Comparatively speaking, the defendant’s offer, presented as it was at the Case Management Conference was for $500.00 in addition to the $5,000.00 that was already paid. In hindsight, it was a very good offer even though the plaintiff did better (slightly) at trial.

Had the defendant offered a mere $500.00 more I would have awarded him his costs at the full 10% that I have jurisdiction to award, which would have been close to $700.00 plus disbursements – this would have been the differential between what had already been paid, and the amount actually sought in the action. Unfortunately, he did not, and I am not going to exercise my discretion to award him his costs when the plaintiff has prevailed in the action.

I say this with due consideration to the fact that if he had accepted the plaintiff’s request to move this matter to an assessment officer at the Court of Queen’s Bench, much less time and energy, in my opinion, would have been saved. However, his impecuniosity, his good faith efforts to try to resolve the matter by making a reasonable offer, and the very nominal award that followed this two-day trial all lead me to exercise my discretion to decline to make an award of costs to either party. [ 54 ] The plaintiff shall have judgment against the defendant in the sum of $956.77. __________________ Demong, J.